New Push For Eminent Domain Reform Expected At Texas Legislature

If you want to cook up a battle over private property rights in Texas, here’s the recipe:

Take a handful of sprawling cities and growing populations that are expanding into once-rural areas, add a booming oil and gas industry with a desperate need for new pipelines to move record-high volumes of hydrocarbons, and sprinkle in the new electric lines needed to power both of those trends.

In recent years, as companies and governments build more roads, power lines and pipelines across Texas, rural landowners have become increasingly familiar with – and angry about – the powers of eminent domain. Their efforts to check those powers at the state capitol haven’t succeeded, but there’s a new push on the horizon for the 2019 Texas legislative session. As the debate gets ready to heat up, here’s what you need to know about eminent domain in Texas.

Eminent what?

If you haven’t heard the phrase before, “eminent domain” is essentially the power public entities and some companies have to use private property to build something, even if the landowner doesn’t want to play along. (President Trump has talked about using that power to build his promised border wall.)

When it comes to oil and gas pipelines, the folks at the energy reporting project StateImpact Texas summed it up nicely a few years ago:

Texans take pride in the their private property. Over 95 percent of land in the Lone Star State is privately owned. And sometimes, pipeline companies want to use that land for their projects.

Typically a pipeline company will reach an individual agreement with a landowner on compensation, but in the event of a failure to reach an agreement, pipeline companies in Texas at times use eminent domain to “condem” the land needed for their pipeline.

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To get eminent domain to route a pipeline across private land in Texas, all a company has to do is check a box on a two-page form to the Railroad Commission of Texas (which regulates drilling and pipelines in the state).

By checking that box, the pipeline company says it is a “common carrier,” i.e. a pipeline that will be available at market rates for other companies to use, and therefore in the public interest.

What happened last time lawmakers met?

In 2017, State Sen. Lois Kolkhorst proposed some tweaks to how eminent domain works in Texas. Her bills would have, among other things, expanded landowners’ rights during condemnation proceedings and forced pipeline companies to be more specific about their plans. The efforts ultimately died.

A bill from State Rep. DeWayne Burns would have also required more transparency from pipeline companies, and would have forced companies to pay landowners if their property, crops or livestock were damaged by the project. That bill also died.

Two main advocacy groups were involved in the debate. Texans for Property Rights lobbied for reform, while the Coalition for Critical Infrastructure defended condemnation powers. (The former is a group of ranching and agriculture interests; the latter represents the oil and gas industry, local governments and business interests. Both are still involved in the debate in Austin.)

What will happen this session?

“We don’t know,” said pipeline company attorney and eminent domain defender James Mann. “The disagreements over eminent domain seem to get bigger and tougher every session. We would anticipate that this session will be no different.”

The 2017 legislative session was a fiery one focused on hot-button issues like transgender people’s access to bathrooms and “sanctuary cities.” So it’s perhaps not surprising that wonky, rural-centric issues like eminent domain reform didn’t get much attention.

That could change this session, as lawmakers are expected to focus on policies with less of a culture war tinge: things like school funding and property tax reform. A spokesperson for Kolkhorst said the senator will file eminent domain legislation similar to her previous reform efforts “in the near future.”

Reform advocates say they want companies using condemnation powers to follow the same standards as public entities. Kaleb McLaurin, with the Texas and Southwestern Cattle Raisers Association, said companies should make better compensation offers up-front before trying to condemn land, and should follow stricter guidelines for accessing land after projects are finished.

“We’re just trying to implement fairness, transparency and accountability into that process,” he said.

Defenders of eminent domain say they’re open to negotiating ways to make the process more amenable to landowners, but Mann argues it would be better if those talks happen outside the legislature.

“Sometimes the complaint’s about money, but more often it’s about how landowners are either happy or unhappy with the way operations are being conducted,” Mann said. “Those are [the] kind of things that we can work on general industry standards to address.”

Eminent domain defenders argue it’s a “seldom-used, last resort” for infrastructure projects, as the Texas Pipeline Association describes it, and that most disputes with landowners are eventually settled privately.